Dispute Resolution
Outline of the module
Workshop/ Subtopics covered Common mistakes Tracker
Topic
Pre-module • Hierarchy of civil courts • Not correctly identifying and applying the
preparation and precedence substantive law
and • Jurisdiction of the county • Lack of appreciation for court’s discretion
professional and high court regarding costs
conduct • Hierarchy of judges and • Confusing limitation dates/ periods with other
how to address them time periods under the CPR
• Rules on appeals • Incorrectly identifying when time starts to run
• Roles of solicitors and for limitation (contract & tort)
barristers
• Costs and funding
Pre-action • Case analysis – merits of • Not protecting a party’s position from the
and starting a the claim / cause of perspective of limitation
claim action • Failing to identify the correct pre-action
• Limitation protocol
• Pre-action protocols • Forgetting the practice direction on pre-action
• Starting a claim applies
• Service (including • Confusing financial limits for court’s jurisdiction
deemed date) with those for allocation
• Elements of claim form • Not distinguishing between service rules for
and particulars the claim form and the particulars/other
• Interest documents
• Not understanding the deadline for serving the
claim form
• Not being able to express a cause of action in
the particulars
• Failing to identify what needs to go into to the
particulars for particular types of claim
• Not being able to claim / calculate interest in
the particulars
Responding • Defendants’ possible • Inaccurately applying the rules on counting
to a claim responses time
• Counting time • Not understanding parties can only agree
• Elements in the defence limited extension to file a defence
• Confusing ‘requires proof’ with ‘denying’ an
allegation in a defence
• Not understanding that if denying an allegation
reasons/a different version must be put
forward in the defence
• Confusing when a court MUST set aside a
judgment in default with when a court MAY set
aside judgment in default
Additional • Part 20 claims – different • Confusing a counterclaim with set off
claims and forms & content • Confusing the different types of additional
changing • Defence of set-off claims (Part 20)
parties • Amending statements of • Not understanding when an additional claim
case can be made without the court’s permission
• Requests for further • Not understanding when an opponent’s/court’s
information (Part 18) permission is, and is not, required to amend a
statement of case
• Failing to spot limitation issues in amendments
to a statement of case
,Interim • Interim applications • Not understanding the ‘normal’ timings for
applications • Security for costs filing evidence in support of an interim
• Summary judgment application
• Interim payments • Failing to identify the special rules for filing
• Interim injunctions evidence in support for some applications (e.g.
• Applications without summary judgment)
notice • Failing to identify when a without notice
application is justified and the procedural
safeguards that apply
• Confusing security for costs with an
application for an interim payment
• Not appreciating the court has discretion to
award security for costs even where a
condition is satisfied
• Not appreciating that BOTH limbs of the test
for summary judgment must be satisfied
Case • Allocation • Incorrectly applying the Denton guidance
management • Case management • Only considering the financial value of the
and costs (including standard claim for allocation
directions) • Not understanding the role of the documents
• Costs management used at the case management stage
• Sanctions and relief from • Miscalculating the deadlines for filing
sanctions documents at the case management stage
• Not understanding the importance of
amending budgets
• Not understanding the different types of
interim costs order
Disclosure • Disclosure (standard • Not appreciating the distinction between
and disclosure test) disclosure and inspection
inspection • Inspection • Assuming standard disclosure will be ordered
• Privilege automatically
• Applications for specific • Failing to recall the different types of privilege
types of disclosure and to apply them accurately
• Not understanding the rules on redaction of
confidential information
Evidence • Testimonial evidence • Failing to appreciate the courts wide power to
• Admissibility control evidence
• Witness statements • Not appreciating the relationship between
• Expert reports serving witness statements and what happens
• Duties of experts at trial
• Failing to spot opinion/hearsay evidence in
witness statements
• Mistakenly believing all hearsay evidence is
inadmissible
• Not appreciating the distinction between a
single joint expert and where each party has
its own expert
• Failing to consider what can happen after the
exchange of expert reports
Settlement • Part 36 offers • Confusing the types of ADR
and ADR • Other settlement options • Not understanding arbitration and litigation are
• Alternative dispute mutually exclusive
resolution • Mistakenly believing ADR should be attempted
once in every case
• Misunderstanding costs sanctions for failing to
engage with ADR
• Confusing the consequences of
accepting/rejecting a Part 36 offer
• Confusing the consequences at trial where a
Part 36 offer has been made
• Not understanding the mechanics of a Tomlin
order
,Trial, appeals • Preparation for trial • Not appreciating when each enforcement
and • Case summaries v method is appropriate
enforcement skeleton arguments • Confusing enforcement proceedings with
• Trial format insolvency proceedings
• Appeals • Confusing the tests for permission to appeal
• Enforcement with the grounds for appeal
• Not realising permission to appeal can
generally be sought from two places
• Confusing an appeal with a rehearing of the
entire claim
Jurisdiction • Choice of jurisdiction • Confusing a court’s jurisdiction with the laws
and conflict of under Hague Convention that will govern the claim
laws & common law • Not noting the importance of the parties’
• Choice of law under choice of jurisdiction
Rome I and II • Misunderstanding the three components of
• Disputing jurisdiction establishing jurisdiction under the common law
• Not appreciating the relevance of an express
choice of law by the parties in a contract / tort
claim
Different options for dispute resolution
Arbitration, mediation and litigation
Negotiation A communication process between parties that is intended to reach a
compromise
Why would you use - The court will usually expect this to be done so it fulfils the
ADR? parties’ obligations
- may preserve a more positive relationship than if a dispute is
resolved through litigation.
- most forms of alternative dispute resolution, if successful, will be
less expensive than litigation and will save time.
- proceedings will also be private and confidential.
- flexibility
- less disruption to clients
- outcomes that reflect the risks- i.e., parties will want to avoid the
, uncertainty of going to court and rather find an acceptable
settlement by meeting in the middle.
- greater control over the process.
- greater involvement by the parties themselves and
What will a legal rep They will:
acting in their client’s (a) ensure that their client is fully aware of options for ADR;
best interests do (ADR)? (b) help their client pursue any ADR it wishes to; and
(c) act within their authority to settle based on authority conferred to
them by the client.
Mediation Confidential process - DR through an impartial third party
● Each party and their legal reps will be present in the same
location but different rooms
● Mediator will be present in the same location but different rooms
Mediator does not have authority to make decisions that are binding
on the parties
Mediator may advise on how best to record the settlement terms if the
parties request him to do so
The mediation agreement is enforced through a contract
Mediator’s fee will normally be borne by the parties equally and they will
be jointly and severally liable to the mediator for it.
Arbitration Here parties are ousting the jurisdiction of the court to hear the
matter
● An impartial adjudicator is appointed and the parties agree that
their decision is final and binding
When negotiating a contract, the parties can include an arbitration clause
to cover future disputes
● But this is also available if no such clause is included
If a party is not happy with the outcome of arbitration, they can still
take the matter to court but the court will stay proceedings and
throw the case out
● The court will only get involved if the arbitrator makes a decision
that only a court order can enforce, e.g.
○ Injunctions
○ Appointing a receiver
● Parties cannot appeal to courts on questions of fact (the
arbitrator’s decision is final), but can appeal on the following
grounds
○ Challenge on jurisdiction (e.g. dispute was not of the
type covered in the arbitration agreement)
○ Challenge for serious irregularity (e.g. arbitrator did no
conduct the process fairly)
○ Appeal on a point of law
Advantages:
● Private and confidential
● Easier enforcement in certain jurisdictions (and litigation requires
Outline of the module
Workshop/ Subtopics covered Common mistakes Tracker
Topic
Pre-module • Hierarchy of civil courts • Not correctly identifying and applying the
preparation and precedence substantive law
and • Jurisdiction of the county • Lack of appreciation for court’s discretion
professional and high court regarding costs
conduct • Hierarchy of judges and • Confusing limitation dates/ periods with other
how to address them time periods under the CPR
• Rules on appeals • Incorrectly identifying when time starts to run
• Roles of solicitors and for limitation (contract & tort)
barristers
• Costs and funding
Pre-action • Case analysis – merits of • Not protecting a party’s position from the
and starting a the claim / cause of perspective of limitation
claim action • Failing to identify the correct pre-action
• Limitation protocol
• Pre-action protocols • Forgetting the practice direction on pre-action
• Starting a claim applies
• Service (including • Confusing financial limits for court’s jurisdiction
deemed date) with those for allocation
• Elements of claim form • Not distinguishing between service rules for
and particulars the claim form and the particulars/other
• Interest documents
• Not understanding the deadline for serving the
claim form
• Not being able to express a cause of action in
the particulars
• Failing to identify what needs to go into to the
particulars for particular types of claim
• Not being able to claim / calculate interest in
the particulars
Responding • Defendants’ possible • Inaccurately applying the rules on counting
to a claim responses time
• Counting time • Not understanding parties can only agree
• Elements in the defence limited extension to file a defence
• Confusing ‘requires proof’ with ‘denying’ an
allegation in a defence
• Not understanding that if denying an allegation
reasons/a different version must be put
forward in the defence
• Confusing when a court MUST set aside a
judgment in default with when a court MAY set
aside judgment in default
Additional • Part 20 claims – different • Confusing a counterclaim with set off
claims and forms & content • Confusing the different types of additional
changing • Defence of set-off claims (Part 20)
parties • Amending statements of • Not understanding when an additional claim
case can be made without the court’s permission
• Requests for further • Not understanding when an opponent’s/court’s
information (Part 18) permission is, and is not, required to amend a
statement of case
• Failing to spot limitation issues in amendments
to a statement of case
,Interim • Interim applications • Not understanding the ‘normal’ timings for
applications • Security for costs filing evidence in support of an interim
• Summary judgment application
• Interim payments • Failing to identify the special rules for filing
• Interim injunctions evidence in support for some applications (e.g.
• Applications without summary judgment)
notice • Failing to identify when a without notice
application is justified and the procedural
safeguards that apply
• Confusing security for costs with an
application for an interim payment
• Not appreciating the court has discretion to
award security for costs even where a
condition is satisfied
• Not appreciating that BOTH limbs of the test
for summary judgment must be satisfied
Case • Allocation • Incorrectly applying the Denton guidance
management • Case management • Only considering the financial value of the
and costs (including standard claim for allocation
directions) • Not understanding the role of the documents
• Costs management used at the case management stage
• Sanctions and relief from • Miscalculating the deadlines for filing
sanctions documents at the case management stage
• Not understanding the importance of
amending budgets
• Not understanding the different types of
interim costs order
Disclosure • Disclosure (standard • Not appreciating the distinction between
and disclosure test) disclosure and inspection
inspection • Inspection • Assuming standard disclosure will be ordered
• Privilege automatically
• Applications for specific • Failing to recall the different types of privilege
types of disclosure and to apply them accurately
• Not understanding the rules on redaction of
confidential information
Evidence • Testimonial evidence • Failing to appreciate the courts wide power to
• Admissibility control evidence
• Witness statements • Not appreciating the relationship between
• Expert reports serving witness statements and what happens
• Duties of experts at trial
• Failing to spot opinion/hearsay evidence in
witness statements
• Mistakenly believing all hearsay evidence is
inadmissible
• Not appreciating the distinction between a
single joint expert and where each party has
its own expert
• Failing to consider what can happen after the
exchange of expert reports
Settlement • Part 36 offers • Confusing the types of ADR
and ADR • Other settlement options • Not understanding arbitration and litigation are
• Alternative dispute mutually exclusive
resolution • Mistakenly believing ADR should be attempted
once in every case
• Misunderstanding costs sanctions for failing to
engage with ADR
• Confusing the consequences of
accepting/rejecting a Part 36 offer
• Confusing the consequences at trial where a
Part 36 offer has been made
• Not understanding the mechanics of a Tomlin
order
,Trial, appeals • Preparation for trial • Not appreciating when each enforcement
and • Case summaries v method is appropriate
enforcement skeleton arguments • Confusing enforcement proceedings with
• Trial format insolvency proceedings
• Appeals • Confusing the tests for permission to appeal
• Enforcement with the grounds for appeal
• Not realising permission to appeal can
generally be sought from two places
• Confusing an appeal with a rehearing of the
entire claim
Jurisdiction • Choice of jurisdiction • Confusing a court’s jurisdiction with the laws
and conflict of under Hague Convention that will govern the claim
laws & common law • Not noting the importance of the parties’
• Choice of law under choice of jurisdiction
Rome I and II • Misunderstanding the three components of
• Disputing jurisdiction establishing jurisdiction under the common law
• Not appreciating the relevance of an express
choice of law by the parties in a contract / tort
claim
Different options for dispute resolution
Arbitration, mediation and litigation
Negotiation A communication process between parties that is intended to reach a
compromise
Why would you use - The court will usually expect this to be done so it fulfils the
ADR? parties’ obligations
- may preserve a more positive relationship than if a dispute is
resolved through litigation.
- most forms of alternative dispute resolution, if successful, will be
less expensive than litigation and will save time.
- proceedings will also be private and confidential.
- flexibility
- less disruption to clients
- outcomes that reflect the risks- i.e., parties will want to avoid the
, uncertainty of going to court and rather find an acceptable
settlement by meeting in the middle.
- greater control over the process.
- greater involvement by the parties themselves and
What will a legal rep They will:
acting in their client’s (a) ensure that their client is fully aware of options for ADR;
best interests do (ADR)? (b) help their client pursue any ADR it wishes to; and
(c) act within their authority to settle based on authority conferred to
them by the client.
Mediation Confidential process - DR through an impartial third party
● Each party and their legal reps will be present in the same
location but different rooms
● Mediator will be present in the same location but different rooms
Mediator does not have authority to make decisions that are binding
on the parties
Mediator may advise on how best to record the settlement terms if the
parties request him to do so
The mediation agreement is enforced through a contract
Mediator’s fee will normally be borne by the parties equally and they will
be jointly and severally liable to the mediator for it.
Arbitration Here parties are ousting the jurisdiction of the court to hear the
matter
● An impartial adjudicator is appointed and the parties agree that
their decision is final and binding
When negotiating a contract, the parties can include an arbitration clause
to cover future disputes
● But this is also available if no such clause is included
If a party is not happy with the outcome of arbitration, they can still
take the matter to court but the court will stay proceedings and
throw the case out
● The court will only get involved if the arbitrator makes a decision
that only a court order can enforce, e.g.
○ Injunctions
○ Appointing a receiver
● Parties cannot appeal to courts on questions of fact (the
arbitrator’s decision is final), but can appeal on the following
grounds
○ Challenge on jurisdiction (e.g. dispute was not of the
type covered in the arbitration agreement)
○ Challenge for serious irregularity (e.g. arbitrator did no
conduct the process fairly)
○ Appeal on a point of law
Advantages:
● Private and confidential
● Easier enforcement in certain jurisdictions (and litigation requires
